US Wildlife Policy

Spring 2024
Module 06

Wildlife protection

  • The US has a long history of wildlife protection
    • Changed with time and scarcity
    • Game species -> non-game species
    • Avoiding the tragedy of the commons

A brief history of wildlife law

History of State Regulation

Regulation of take

  1. Adopted regulations to reduce the amount of take
    • Defined seasons and bag limits
    • Gear restrictions
    • Limited reasons for take
  2. Establishment of Fish and Game Commissions
    • Key agency responsible for wildlife mgmt
    • Variation in structure and authority by State

A brief history of wildlife law

History of State Regulation



Regulation of take

  1. Restrictions on who could hunt and fish
    • Out-of-stater bans or taxes
      • Violates the Privileges and Immunities Clause
    • Age restrictions
  2. Restrictions on wildlife exports
    • Lacey Act
      • Prohibits the interstate transport of wildlife taken in violation of state laws
      • Prohibits the importation of wildlife taken in violation of foreign laws

A brief history of wildlife law

Growth of federal wildlife law

  • Federal gov’t took a hands-off approach to wildlife early on
  • Until the Lacey Act (remember reactive)
  • Federal govt expanded its protections to address falling populations
    • Relies on the Commerce Clause, Treaty Clause, Property Clause, and the Taxing and Spending Clause

State laws

  • Several states have rights written into their constitutions
  • Regulations fall into several categories
    • Permits limit how many people can hunt and fish
    • Hunting seasons limits when hunting and fishing can occur
    • Locational limits limits take in low population areas
    • Bag limits limits the number of animals that can be taken
    • Gear restrictions limits how capture can occur
    • Size and age restrictions limits which animals can be taken
  • Increasingly recognized the importance of habitat protections
  • Public has increasing pressured restrictions for ethical reasons

Wildlife management today

Federal laws

  • Even with vast power, wildlife mgmt often rests with states

  • Federal laws often:

  1. Strengthen the authority of states
  2. Special protection for specific taxa
    • Bald and Golden Eagle Protection Act
    • Marine Mammal Protection Act
    • Migratory Bird Treaty Act
    • Wild Free-Roaming Horses and Burros Act
  3. Protect wildlife habitat through regulations and land protection
    • Federal Aid in Wildlife Restoration Act (Pittman-Robertson Act)
    • Federal Aid in Sport Fish Restoration Act (Dingell-Johnson Act)
    • Magnuson-Stevens Fishery Conservation and Management Act
    • National Wildlife Refuge System Act
    • Land and Water Conservation Fund Act
    • Farm Bill (Conservation Incentive Programs)
  4. Leading role in protecting endangered species

Protection of endangered species

  • World is experiencing a mass extinction event
    • With humans being the leading cause

Endangered Species Act (ESA)

  • Very strong protections

  • Bans the take of listed species

  • “Emergency Room” approach

  • Often criticized for being too strong

    • Economics is not a consideration

  • Often falls back to ethical position (biocentric vs utilitarian)

  • Biodiversity and ecosystem services

  • Authority is split between the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)

Listing species

  • ESA only protects those species that are posted on a formal list

  • A species is endangered if the FWS finds that it is “in danger of extinction throughout all or a significant portion of its range.”

  • A species is threatened if it is “likely to become an endangered species in the foreseeable future.”

  • Same protections are afforded to both

  • Listing can occur via two ways

    1. Petitions from the public
    2. Prerogative of the FWS or NMFS

  • Defining the species (species is undefined in the ESA)

  • Critical habitat must also be defined

  • Economics and politics not considered in decisions to list

    • Must be based on best available science

  • Listing can be challenged in court because it rests on scientific expertise

  • Candidate species are species that are being considered for listing

    • Can sit on here for a long time
      • Now have 90 days to make a decision

  • States can have their own lists that differ from the Federal List (remember more restrictive, not less)

Limits on federal actions

  • All federal agencies must consult with the FWS or NMFS when their actions may affect listed species
  • Lessons from TVA v Hill:
    • Cost is not an excuse for not protecting species
    • If projects are to be exempt from ESA, they must be specifically exempted
    • The ESA is a strong law with real teeth

Private violations

Prohibition on takings

  • take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or engage in anyway”
  • Includes habitat modification that “actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering”
  • Babbit v Sweet Home Chapter of Communities for a Great Oregon (aka Sweet Home)

Incidental take permits

  • FWS can issue a permit for incidental take (i.e., not intentional)
    • merely incidental from a lawful activity
    • permittee developed a habitat conservation plan (HCP)

Adminstrative reforms

  • FWS has adopted several reforms over time
  • No Surprises Policy
    • If a permittee follows the HCP, the FWS will pay for new habitat or actions -Safe Harbor Agreement
    • Encourages landowners to voluntarily take actions to benefit species
    • If the species increases on that land, the landowner will still be able to develop their land

Private violations

Critcisms of section 9

  • Conflicts with property rights and regulatory takings
  • Three general categories:
    1. Landowners are incentivised to destroy habitat (shoot, shovel, and shut up)
    2. Private landowners bear the brunt of the costs for species protections
    3. Costs of the ESA do not equal the value

Recovery plans

  • FWS develops a recover plan for listed species
  • Typically these need funding, which is not necessarily provided

Does the ESA work?

  • As of 2017, only 76 species have been delisted
    • 10 were delisted because they went extinct
  • Most of remaining species have not gone extinct
  • ESA could be improved by focusing on protecting species earlier and to refocus the law on biodiversity and habitats

Other endangered species protections

State endangered species protections

  • All but 5 states have their own endangered species laws
  • Include the federally listed species, but also more

Convention to Regulate International Trade in Endangered Species (CITES)

  • International treaty to protect globally endangered species
  • Three lists or appendices
    • Appendix I: species threatened with extinction and may be affected by trade
    • Appendix II: species that may become threatened with extinction if trade is not regulated
    • Appendix III: species that are protected in at least one country and that country has requested help limiting trade

🔗 UNL Canvas